Download IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

IN THE COURT OF APPEAL
OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application for an
order in the nature of Writ of Quo
Warranto under and in terms of Article
140 of the Constitution of the
Democratic Socialist Republic of Sri
Lanka.
CA (Writ) Application No:
/2016
Keerthi Tennakoon
100/19A, Welikadawatta Road,
Rajagiriya.
PETITIONER
-VsArjun Lakshman Mahendran,
Governor of the Central Bank of Sri
Lanka,
No. 30, Central Bank of Sri Lanka,
Janadhipathi Mawatha,
Colombo 1.
RESPONDENT
TO:
HIS LORDSHIP THE PRESIDENT AND THEIR LORDSHIPS THE OTHER
HONOURABLE JUDGES OF THE COURT OF APPEAL OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
On this 20th day of June, 2016
The Petition of the Petitioner above named appearing by Ms. Dharshika Perera and
Samudra Guanawrdena under the name and style of “NICLO ASOCIATES” , his registered
Attorney-at-Law states as follows;
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1. The Petitioner is a citizen of Sri Lanka.
2. The Petitioner states that he is the Executive Director of CaFFE, and has been
involved in ensuring the rule of law and good governance.
3. The Petitioner invokes the jurisdiction of Your Lordships' Court in respect of the
subject matter of this application in the public interest. The Petitioner states that
the issues to be determined by Your Lordships' Court in this application are of
significant public and constitutional importance. The Petitioner states that as a
citizen of Sri Lanka it is a constitutional duty under Article 28 of the Constitution
to uphold and defend the Constitution and the law and to preserve and protect
public property and to combat misuse and waste of public property and he is
conscious of his said Constitutional duties.
4. The Respondent is the incumbent de facto Governor of the Central Bank of Sri
Lanka who is holding onto the said office illegally.
5. In this application the Petitioner is seeking to impugn the Respondent illegally
holding office as the Governor of the Central Bank of Sri Lanka.
6. The Petitioner states that the Central Bank of Sri Lanka is the authority
responsible for the administration, supervision and regulation of the monetary,
financial and payments system of Sri Lanka and the Central Bank of Sri Lanka is
charged with the duty of securing economic and price stability and financial
system stability with a view to encouraging and promoting the development of
the productive resources of Sri Lanka.
7. The Petitioner states that in terms of the provisions of Section 19 of the Monetary
Law Act, the Governor is the chief executive officer of the Central Bank of Sri
Lanka and is charged with the powers, duties and functions stipulated in Section
19 of the Monetary Law Act.
8. The Petitioner states that the Governor of the Central Bank of Sri Lanka is a
public officer within the meaning of the Constitution of the Republic of Sri
Lanka.
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9. The Petitioner states that the Respondent is presently a citizen of Singapore and
is not a citizen of Sri Lanka. The Petitioner states that the Respondent is residing
in Sri Lanka on a 'working visa'.
10. The Petitioner states that the Respondent was citizen of Sri Lanka by birth but
subsequently renounced his Sri Lankan citizenship and became a citizen of
Singapore, by registration. The Petitioner states that under and in terms of
Article 126(1) of the Constitution of Singapore no person shall be registered as a
citizen of Singapore until he has taken the oath of renunciation of allegiance and
loyalty in the form set out in the 2nd Schedule of the Constitution of Singapore.
A copy of the said second schedule is annexed herewith marked as P1 and pleaded as part
and parcel of this Petition.
11. The Petitioner states that as required by the Constitution of Singapore, the
Respondent as a citizen of Singapore has pledged allegiance to the Constitution
of Singapore.
12. The Petition states that Article 170 of the Constitution of the Democratic Socialist
Republic of Sri Lanka defines a “public officer” as a person who holds any paid
office under the Republic, and excludes certain categories of persons from the
application of this definition. However, the governor of the Central Bank of Sri
Lanka has not been excluded from the application of this definition.
13. The Petitioner further states that as per Article 165 of the Constitution of the
Democratic Socialist Republic of Sri Lanka every public officer is required by the
Constitution to take an oath or make an affirmation as set out in the 4 th Schedule
of the Constitution.
14. The Petitioner states that therefore the Respondent being a citizen of Singapore is
incapable of pledging allegiance to the Constitution of the Republic of Sri Lanka.
The Petitioner further states that a situation might arise where the Republic of Sri
Lanka will have to enter into financial transactions with the Republic of
Singapore or financial institutions incorporated in Singapore and in such
situations the Respondent being a citizen of Singapore who has pledged
allegiance to the Constitution of Singapore would not be in a position to
discharge the proper functions of the office of the Governor of Central Bank of
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Sri Lanka and the same demonstrates that the Respondent is not legally entitled
to hold office as the Governor of the Central Bank of Sri Lanka.
15. The Petitioner states that in the circumstances the Respondent is disqualified by
law from holding office as the Governor of the Central Bank of Sri Lanka.
16. The Petitioner states that the Respondent was purportedly appointed as the
Governor of the Central Banka of Sri Lanka on or about 27.01.2015 and since then
the Respondent is in usurpation of the office of Governor of the Central Bank of
Sri Lanka.
17. The Petitioner further states that according to the profile of the Respondent
published in Business Week Bloomberg, the Respondent appears to be affiliated
to the Credit Suisse Group AG, which is a global financial institution from which
the Government of Sri Lanka has decided to borrow money.
A true copy the relevant web page of the Respondent's profile is annexed hereto marked
as P2 and pleaded as part and parcel of this Petition.
18. The Petitioner states that in terms of Section 11(c) Monetary Law Act, a person
who is a director, officer, employee or shareholder of any banking institution
other than the Central Bank of Sri Lanka is disqualified from holding office as the
Governor of the Central Bank of Sri Lanka.
19. The Petitioner states that therefore by virtue of his involvement with the Credit
Suisse Group AG the Respondent is disqualified by Section 11(c) of the Monetary
Law Act from holding office as the Governor of the Central Bank.
20. The Petitioner further states that there are serious allegations of corruption
against the Respondent, in particular in the issuance of treasury bonds on
27.02.2015. The Petitioner states that;
(a) On 27.02.2015, the Central Bank of Sri Lanka announced an auction of
issuing 30 year treasury bonds for Rs. 1000 million and thereafter
Public Debt Department of the Central Bank contacted commercial
banks and primary dealers over the phone canvassing bids for the
above auction around the market rate of 9.35% to 9.75% range.
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(b) At the auction Central Bank of Sri Lanka accepted bids for Rs. 1000
million at weighted average of 11.73%. However bids for Rs. 3000
million from the primary dealer Perpetual Treasuries Ltd., owned by
the Respondent's son in law was accepted at 12.50%. Most of the other
banks and the primary dealers bid at low rates below 11.00%.
(c) Soon after the conclusion of the above auction, on 27.02.2015 the
Central Bank announced a policy change removing restrictions to
excess funds of commercial banks at the standing deposit facility of the
Central Bank and effectively increasing overnight money market rates
by around 1%. This policy change was done only 3 days after the
previous monetary policy announcement where monetary board
stated that there was no need to change the monetary policy.
(d) The activities of the said primary dealer Perpetual Treasuries Ltd., who
successfully bid for Rs. 3000 million at 12.50 %and Rs. 2000 million at
around 12.00% at the auction clearly indicates prior knowledge of
impending monetary policy changes.
21. The Petitioner states that in the aforesaid circumstances the conduct of the
Respondent and holding of office as the Governor of the Central Bank of Sri
Lanka is obnoxious to all the norms of good governance.
22. The Petitioner states that in the totality of the aforesaid circumstances, the
Respondent holding office as the Governor of the Central Bank of Sri Lanka is
ultra vires the Monetary Law Act, No. 37 of 1974 (as amended) and is illegal.
23. The Petitioner states that in the circumstances, the Petitioner is entitled to a
mandate in the nature of Writ of Quo Warranto declaring that the Respondent is
disqualified and/or not entitled to hold office as the Governor of the Central
Bank of Sri Lanka.
24. The Petitioner states that he has not previously invoked the jurisdiction of Your
Lordships' Court in respect of the subject matter of this application.
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WHEREFORE THE PETITIONER RESPECTFULLY PRAYS THAT YOUR
LORDSHIPS' COURT BE PLEASED TO;
(a) Issue Notice on the Respondent;
(b) Call for and examine the entire record pertaining to the subject matter
of this application;
(c) Grant and issue an order in the nature of Writ of Quo Warranto
declaring that the Respondent is disqualified and/or not entitled to
hold office as the Governor of the Central Bank of Sri Lanka;
(d) Grant costs;
(e) Grant such other and further reliefs that Your Lordships' Court shall
seem meet;
Attorney-at-Law for the Petitioner
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